The Korean Association of Criminal Procedure Law最新文献

{"title":"Improvement plan of the current detainee release system based on the principle of presumption of innocence","authors":"Seong-hun Ahn","doi":"10.34222/kdps.2023.15.3.31","DOIUrl":"https://doi.org/10.34222/kdps.2023.15.3.31","url":null,"abstract":"Our Constitution stipulates the principles of due process (Article 12 (1)) and the presumption of innocence (Article 27 (4)) as in order to maximize the freedom of the person, which is a prerequisite for guaranteeing all basic rights. In particular, the principle of presumption of innocence is the principle that in a criminal trial, a suspect or defendant should be treated as innocent until a guilty verdict is finalized, and the disadvantages should be limited to the minimum necessary. Therefore, since the principle of presumption of innocence is a principle that limits the restraint of the person itself, investigation and trial in criminal procedures are, in principle, required to be conducted in a state of detention. Accordingly, personal restraint in criminal procedures should be exceptionally used only in cases where it is deemed impossible to achieve the purpose of criminal proceedings because it is impossible to effectively respond to crimes by means other than restraint. If alternative means other than restraint are possible, a system should be prepared to select alternative means according to the principle of proportionality. Based on these constitutional values, our Criminal Procedure Law has established the principle of investigation without detention (Article 198 of the Criminal Procedure Act) and trial without detention in the operation of the person restraint system. Regulations on the system of personal detention and release of persons under arrest have been revised. However, looking at the reality of the operation of the arrest and release system, it is questionable whether these institutional devices are properly contributing to the realization of constitutional values and principles of criminal procedure law. For example, there is not much difference in the rate of release by adjudication against detention compared to before the introduction of the arrest warrant review system, and the operation of the bail system has also increased the possibility of realizing the principle of trial without detention by introducing various conditions for bail after the 2007 revision of the Criminal Procedure Act. Despite this, the court arrest rate has increased, and the rate of permission for bail has decreased rather than before the introduction of various bail conditions. This trend in statistics leads us to infer that the detention review and bail system, contrary to the purpose of the revision efforts to lower the arrest rate, do not function as practical control means to curb unnecessary detention and prevent the prolongation of detention. Therefore, it is necessary to find a plan that can actually work as an ex post means to realize the constitutional value of the current detainee release system.","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"12 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139333847","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":".","authors":"H. H","doi":"10.34222/kdps.2023.15.3.137","DOIUrl":"https://doi.org/10.34222/kdps.2023.15.3.137","url":null,"abstract":"<jats:p />","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"8 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139333925","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":".","authors":"H. H","doi":"10.34222/kdps.2023.15.3.191","DOIUrl":"https://doi.org/10.34222/kdps.2023.15.3.191","url":null,"abstract":"<jats:p />","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"21 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139332066","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Meaning of the revision of the so-called 『Investigation Rules』 and future tasks","authors":"Oung-Seok Jeong","doi":"10.34222/kdps.2023.15.3.1","DOIUrl":"https://doi.org/10.34222/kdps.2023.15.3.1","url":null,"abstract":"Looking at the revision of the investigation rules, the procedural part (maintenance of various investigation deadlines) has been reorganized, but there is no particular content. In other words, it is only a standard for the investigation period that the prosecution and police should follow step by step so that the case can be systematically managed and investigated quickly. Nevertheless, there is no reason why some politicians or the media are criticizing it, saying it is “the restoration of the prosecution” or “the deprivation of the police's right to terminate the investigation”. This is because the revision of some provisions of the investigation rules is not to criminalize the “right to terminate the investigation of the police”, but to promote the handling of the case more fairly and quickly. If the police's judgment is always correct, there is no need to request a reinvestigation or request a transfer. However, the police's judgment cannot always be right, neither the prosecution nor the court. Therefore, it is reasonable to have a judicial supplementary device (complementary investigation by prosecutors, reinvestigation, etc.) whether it is a police case or a non-repatriation case, and it is questionable what it will mean to protect the rights of the people. Above all, the debate on investigative rights is not a matter of power struggle between the prosecution and the police, but a matter of whether it is reasonable for the police to handle the case on its own in consideration of the efficiency of the investigation or the inconvenience of the prosecution or reinvestigation. In conclusion, I hope that it will be an in-depth discussion, such as whether the revision of the investigation rules “before” or “after” is better for the people, and whether the lawyers in the field agree or disagree. It is understandable that he hates the current government or the prosecution, but the victim is not the current government or the prosecution, but the people.","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"51 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139332912","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Protection of Minor Victims of Sexual Violence Crimes in Criminal Proceedings and the Defendant's Right to Cross-Examine","authors":"Won Sang Lee","doi":"10.34222/kdps.2023.15.3.101","DOIUrl":"https://doi.org/10.34222/kdps.2023.15.3.101","url":null,"abstract":"Sexual violence crimes are referred to as so-called 'personality murder' or 'soul murder'. Minor victims of sexual violence crimes have to deal with secondary damage in criminal proceedings. The regulation introduced to overcome it is Article 30 (6) of the Sexual Violence Punishment Act. Since the Constitutional Court made a constitutional decision on the regulations in 2013, there has been no change in social perception and value to the extent that the content of the proportionality principle has been changed, the number of victims of underage sexual violence has increased, and secondary damage has continued. However, in 2021, the Constitutional Court considered Article 30 (6) of the Sexual Violence Punishment Act unconstitutional by applying the changed principle of proportionality, seeing the guarantee of the accused and the defendant's right to cross-examine as a constitutional guarantee, not a procedural guarantee. This paper criticized the Constitutional Court's decision in 2021 from the perspective of underage victims and considered legislative discussions until the law was revised. Although the Sexual Violence Punishment Act has recently been revised, it is still questionable whether secondary damage to underage victims can be reduced in criminal proceedings. Therefore, this paper considered how to apply the current regulations to those under the age of 13 and those with disabilities, and to recognize the admissibility of evidence by joining a specialized investigator belonging to the court during the investigation process.","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"7 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139333285","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Meaning and implications of digital documentation of criminal trials in Germany","authors":"Sung-Ryong Kim","doi":"10.34222/kdps.2023.15.3.69","DOIUrl":"https://doi.org/10.34222/kdps.2023.15.3.69","url":null,"abstract":"Germany is implementing a plan to digitally video or audio record what happens in the trial court of criminal proceedings. Many German judges also have animosity or concerns about video recording of trial proceedings. However, a bill aimed mandatory recording and discretionary video recording was submitted with the goal of mandating digital video recording or recording and automatic creation of transcript records in all courts by 2030. Even in Germany, various arguments for and against this bill were presented. As Mosbacher, a judge in the criminal division of the German Federal Supreme Court, said, it is no longer a matter of wether but how, and the details have become subject to compromise. In this article, we looked at the contents of the related German bill, the pros and cons, especially the judges' positions and counterarguments of scholars and criminal lawyers, and looked for the implications this can have on our situation. Ignoring the basis of the legitimacy of the existence of criminal trials and advancing modern technology may ultimately lead to the collapse of criminal justice per se. The way to become a court trusted by the public, to be evaluated as a criminal judgment acceptable to the parties, and to drastically reduce the overflow of appeal cases depends, above all, on how faithfully and transparently the first trial procedures and rulings that deal with the facts are made. Rather than clinging to the old-fashioned slogan that video trials cannot be permitted, it is important to know where, what, and how to change in our criminal trial in order to become a functioning criminal justice system that can meet the unique challenges of criminal trials as much as possible while efficiently using the limited national budget. We have to think about it.","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"200 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139332340","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":".","authors":"H. H","doi":"10.34222/kdps.2023.15.3.171","DOIUrl":"https://doi.org/10.34222/kdps.2023.15.3.171","url":null,"abstract":"<jats:p />","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"27 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139333773","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Thoughts on Restoring the Status of Video Recording Investigations","authors":"Sueng eon Kim","doi":"10.34222/kdps.2023.15.2.217","DOIUrl":"https://doi.org/10.34222/kdps.2023.15.2.217","url":null,"abstract":"The video recording investigation, which began with the digital revolution as an innovation in documentary culture, brought present and former Defendant together in one court and made it possible to savor their statements. The separation of prosecution and trial adopted by the modern criminal law had the side effect of increasing the difficulty of discovering the substantive truth due to the time lag, but video recording investigations that maintain the freshness of statements like a refrigerator help overcome this. It is a gift brought by the development of science and technology. However, the reality of our law has fallen into the dogma of trials that have settled for the past, and has deprived the admissibility of evidence of video recording investigations through legislation and interpretation. It is regrettable that there has been a lack of consideration about whether it is possible to deprive certain types of evidence of the admissibility of evidence through legislation and whether the reasons are reasonable. The national punishment power, which is a means of realizing the rule of law, must be exercised correctly, appropriately, and impartially, which is a constitutional requirement. In particular, the power to punish as a judiciary must be fair and appear fair. To this end, all evidence, which is the data for finding the facts, must be allowed to enter the courtroom if it meets the general requirements for admissibility of evidence without being biased. Advanced criminal justice systems such as the UK, the US, Germany, and Japan all operate criminal justice systems with the possibility of using evidence open, and this is a global standard. In practice, video recordings such as CCTV and black boxes are recognized as evidence, and transcripts, which are hearsay evidence, are also recognized as evidence if they fall under the exception of the hearsay rule. There is no reason to treat it differently as a video recording investigation. Prohibiting the use of this certificate on the grounds that it is a video recording investigation is unconstitutional as it hinders the correct and fair exercise of The national punishment power. The speed of change in the world is dazzling. In order to prevent criminal justice from becoming an obstacle in a rapidly changing society, the status of video recording investigations must be restored as evidence. We should not be buried in exhausting debates anymore, but respond in time to new crimes emerging in a rapidly changing environment and crimes that are increasingly becoming more intelligent, organized, and internationalized. Now is the time for each of us to use our creativity for an effective future criminal justice system.","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128221272","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Administration Investigation & Right to Counsel","authors":"Yong Chul Park","doi":"10.34222/kdps.2023.15.2.1","DOIUrl":"https://doi.org/10.34222/kdps.2023.15.2.1","url":null,"abstract":"The assertion to have the right to counsel or let their counsel participate in administrative procedures does not necessarily stem from the principle of due process of law under the discussions of U.S. law. In other words, having a counsel to represent himself or herself may be a very important first step to protect the human rights of those who is subject to administrative investigations discussed under various Korean laws, but it is also necessary to consider that the right to participate may be somewhat nominal or unequal because the right to counsel in a criminal procedure setting, it is not an active right protected by the government, reaching to a point where a counsel is provided by the government as a right. Of course, I do not agree with the argument that the right to counsel in an administrative investigation should be deleted or denied because of such negative aspects, but rather, the right to counsel in an administrative investigation is not a basic constitutional right based on the principle of due process.","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"203 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116177703","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Reviewing measures to expand the participation rights of victims of trade secret infringement cases in the criminal trial procedure","authors":"Sungkyu Choi","doi":"10.34222/kdps.2023.15.2.117","DOIUrl":"https://doi.org/10.34222/kdps.2023.15.2.117","url":null,"abstract":"The protection of trade secrets is not only beneficial to individual businesses, but also directly linked to the interests of the nation and society as a whole. Therefore, prosecutors responsible for maintaining public prosecution in cases of trade secret infringement have a heavy duty to lead guilty verdicts and appropriate sentencing based on a deep understanding of the technical details of the trade secret in question. With the advent of the Fourth Industrial Revolution, the types and technical complexities of trade secrets have been rapidly increasing. In this context, the victim is often the person who possesses the deepest understanding of the technical details of the trade secret in question. Therefore, expanding the participation of victims in the trial process of trade secret infringement cases is not only crucial for maintaining public prosecution in individual cases but also serves as a significant task in the realm of safeguarding public interest. In this article, we intend to examine various measures to expand the participation rights of victims in the criminal trial process of trade secret infringement cases. This topic shares several points with the broader issue of expanding the participation of victims in general criminal cases, and we will explore them together. Firstly, various actions such as victims engaging in interviews with prosecutors or submitting materials to prosecutors outside of the court are legally sound and justified when examined from multiple perspectives, including the “permissibility and scope of investigation after indictment” and “allowance of pre-trial witness interviews with prosecutors.” In particular, the exchange of opinions and information between prosecutors and victims regarding technical aspects is crucial for the proper prosecution of trade secret infringement cases. Moving on to the possibilities for criminal victims to participate in the procedures in court, generally, victims have the right to express their opinions and make statements based on the Constitution, as well as specified in the Criminal Procedure Act and Criminal Procedure Rules. For certain crimes such as sexual violence offenses, there are separate provisions in the law that ensure the right of victim's counsel to express their opinions and make statements. In relation to this, the author believes that it is possible, based on the interpretation of current laws and regulations, to recognize the legal right of victim's counsel to express their opinions and make statements in court regarding general criminal cases including trade secret infringement cases. Furthermore, the author believes that such recognition is necessary. The basis for this argument is that, firstly, allowing victim's counsel to express their opinions and make statements is the most effective means to adequately protect the victim's right to present their views in court. Secondly, the principle against analogy takes a significantly relaxed attitude towards procedur","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121989359","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}